United States: Divided New York Court Of Appeals Restricts Freedom Of Information Law Disclosures

A divided New York Court of Appeals recently held that Civil
Rights Law § 50-a bars disclosure of police officer
personnel records except under very limited circumstances,
eliminating access to such records by the press or advocacy groups
under the Freedom of Information Law ("FOIL") even if the
police department itself is willing to release them and even if
they are redacted. The decision, In the Matter of New York Civil Liberties Union v.
New York City Police Department, came with two dissents
arguing that it is a significant break with earlier case law in
which the Court construed FOIL exemptions more narrowly and at
least suggested that agencies and the lower courts had more
flexibility to effectuate FOIL's goal of transparency.In 2011, the New York Civil Liberties Union
("NYCLU") issued a FOIL request to the New York City
Police Department ("NYPD") seeking copies of its internal
adjudications, over ten years, of disciplinary proceedings. The
NYPD largely denied the request based on Civil Rights Law
§ 50-a and the NYCLU sued for further disclosure. The
trial court ordered further disclosure of the records, redacted to
remove information that might be used to identify officers, but the
Appellate Division reversed, holding that the agency could not be
required to redact and produce the records.

The Court of Appeals affirmed. Noting that the relevant FOIL
provision, Public Officers Law § 87(2)(a), permits
agencies to deny access to records exempted from disclosure
pursuant to another statute, the majority held that such an
exemption was provided by Civil Rights Law § 50-a, under
which "personnel records used to evaluate performance" of
police and corrections officers and firefighters are
"confidential and not subject to inspection or review."
Considering that the disciplinary decisions were personnel records,
the majority held that § 50-a applied. The majority
rejected the NYCLU's contention that § 50-a should be
limited to the context of actual or potential litigation, since the
statute was intended to protect officers from embarrassment or
harassment in other contexts. While the text of § 50-a
permits court-ordered disclosure after notice to the affected
persons, limited to "relevant and material" parts of the
record, the majority found this exception applicable only in the
context of ongoing litigation. It also rejected the argument that
§ 50-a permits the police department or other agency to
make voluntary disclosures of such material without a court order
(and hence, a fortiori, rejected any argument that a court
could require such disclosures beyond the limited exception
§ 50-a provides for material required in ongoing
litigation). Finally, although another FOIL subsection, Public
Officers Law § 89(2), provides that documents exempt from
disclosure to prevent "unwarranted invasion of personal
privacy" may be produced with redactions to protect privacy,
the majority held that this provision did not apply to the relevant
Public Officers Law § 87(2)(a) exception for records
exempted by another statute. In a concurrence, Judge Stein
contended that the court should not have reached this final point,
although she joined the statutory analysis that preceded it.

Judge Rivera, joined by Judge Wilson, dissented, arguing that
FOIL, as construed in earlier Court of Appeals decisions, expresses
a strong policy in favor of disclosure and affords agencies
discretion to produce redacted records, which is incompatible with
the strict limitations the majority found in Civil Rights Law
§ 50-a. Judge Rivera further argued that § 50-a
was enacted to prevent harassment of police officers and other
covered personnel, a purpose that could be accommodated by
permitting production of records redacted to conceal the identities
of such personnel. In a separate dissent, Judge Wilson added that
the records at issue in this case were the product of public
disciplinary hearings, eliminating any confidentiality interest the
records might otherwise have raised and hence further supporting
disclosure.

The majority's opinion is not surprising given the strict
textual approach the Court has often espoused. But, as Judge
Rivera's dissent makes clear, it sweeps aside a number of
passages in the Court's FOIL decisions from the 1980s and 1990s
that suggested the Court would be more receptive to cabining Civil
Rights Law § 50-a in order to give effect to FOIL. If the
only exception to the restriction in § 50-a is when
records are sought by parties in ongoing litigation, the press and
advocacy groups will have a sadly diminished role in ensuring that
disciplinary processes applicable to police and corrections
officers, among others, are adequately ventilated. But the issue
will now be addressed, if at all, only by legislation.

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guide to the subject matter. Specialist advice should be sought
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